November 1, 2012

Do drug-sniffing dogs pass smell test? Justices to decide

Justices hear arguments on the legality of searches by drug dogs and whether the results are reliable.

The Associated Press

(Continued from page 1)

Franky
click image to enlarge

A detection of drugs by the Miami-Dade police dog Franky, above, is at the center of a case before the U.S. Supreme Court on the legality of outside-the-home searches.

The Associated Press

U.S. willing to let college reopen health care law challenge

WASHINGTON - The Obama administration told the Supreme Court on Wednesday that it does not object to reopening a Christian college's challenge to President Obama's health care overhaul.

In court papers, the Justice Department said it does not oppose allowing a federal appeals court in Richmond, Va., to consider the claim by Liberty University in Lynchburg, Va., that the law violates the school's religious freedoms.

A federal district judge has already rejected Liberty's claims, and the 4th U.S. Circuit Court of Appeals ruled that the lawsuit was premature and never dealt with the substance of the school's arguments. The Supreme Court upheld the health care law in June in a ruling that also said the appeals court was wrong not to decide the issues.

The justices used lawsuits filed by 26 states and the National Federation of Independent Business to uphold the health care law by a 5-4 vote, then rejected all other pending appeals, including Liberty's.

The school made a new filing with the court over the summer to argue that its claims should be fully evaluated in light of the high court decision. If the justices agree, they probably would formally throw out the 4th Circuit's ruling and order it to take a new look at Liberty's case.

Liberty is challenging both the requirement that most individuals obtain health insurance or pay a penalty, and a separate provision requiring many employers to offer health insurance to their workers.

The appeals court would have the option of asking the government and the college for new legal briefs before rendering a decision.

In Franky's case, Garre argued that since it wouldn't be illegal for a police officer to sniff for marijuana outside a door, it shouldn't be illegal for a dog like Franky to do the same thing.

If that's true, said Justice Ruth Bader Ginsburg, then police could just walk down a street with drug-sniffing dogs in "a neighborhood that's known to be a drug-dealing neighborhood, just go down the street, have the dog sniff in front of every door, or go into an apartment building? I gather that that is your position."

"Your Honor, they could do that," Garre said.

But if someone invented a machine called the "smell-o-matic" that could do the same thing as Franky, police would not be able to use it outside of doors without a warrant, Justice Elena Kagan said.

Justice Anthony Kennedy, who is often the deciding vote when the court is closely divided in a case, came down hard on both sides in Franky's case. He told Garre, the attorney for Florida, that he didn't agree with his argument that people with contraband inside their home don't have an expectation of privacy. "Don't ask me to write an opinion and say, 'Oh, we're dealing with contraband here so we don't need to worry about expectation of privacy,'" Kennedy said.

But Kennedy also told defense lawyer Blumberg that he won't agree with his theory that it should always be considered a search when police try to find out what people are trying to keep secret.

To say "our decisions establish that police action which reveals any detail an individual seeks to keep private is a search -- that is just a sweeping proposition that in my view, at least, cannot be accepted in this case. I think it's just too sweeping and wrong," Kennedy said.

"I would add a few words to the end of that statement: Anything that an individual seeks to keep private in the home, and that's the difference," Blumberg replied.

One Australian study found that a dog only correctly identified drugs 12 percent of the time, Justice Sonia Sotomayor said. "I'm deeply troubled" by that, she said.

Garre argued that the numbers in that study could be read differently to raise that number as high as 70 percent, counting instances in which -- even though drugs weren't found -- the person that the dog alerted to had used or been in proximity of drugs before the dog's alert.

The justices will rule in the cases sometime next year.

 

Were you interviewed for this story? If so, please fill out our accuracy form

Send question/comment to the editors




Further Discussion

Here at PressHerald.com we value our readers and are committed to growing our community by encouraging you to add to the discussion. To ensure conscientious dialogue we have implemented a strict no-bullying policy. To participate, you must follow our Terms of Use.

Questions about the article? Add them below and we’ll try to answer them or do a follow-up post as soon as we can. Technical problems? Email them to us with an exact description of the problem. Make sure to include:
  • Type of computer or mobile device your are using
  • Exact operating system and browser you are viewing the site on (TIP: You can easily determine your operating system here.)